By Jesse Marx
By Chris Parker
By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
As Leticia Zuniga remembers the first time her boss made a pass at her, she fidgets with a sugar packet meant for the coffee in front of her.
When it happened, she explains, she was one of about 20 employees tasked with cleaning the Ridgedale Center, the upscale shopping mall in Minnetonka. Her actual employer was the subcontractor Service Management Systems, a Tennessee-based company with thousands of employees who clean more than 300 malls around the country.
A slim woman, Zuniga wears her dark brown hair tied in a low bun. Freckles dust her cheekbones and forearms. Her supervisor, SMS's facilities manager at the Ridgedale Center, used to notice them.
"'I'd love to get to know all of those freckles,'" Zuniga remembers him saying.
One day not long after that comment, Marco Gonzalez called Zuniga into his windowless basement office. He closed the door. It wasn't that unusual, Zuniga remembers thinking. He usually had the door closed.
Quickly, though, she grew wary. After running through his normal list of compliments, Gonzalez asked Zuniga to take off her clothes. She refused. And so he locked the door, turned off the lights, and stripped her clothes off for her.
"And that," Zuniga says, the sugar packet in shreds, "was the first."
Over the next two months, Zuniga alleges, Gonzalez would rape her three more times.
Gonzalez knew Zuniga's family. He walked around the mall with her husband on breaks; Zuniga had sold Avon products to his wife.
He knew that the immigration documents she had shown him were fakes — that she had come here illegally — and that she worried about being discovered. He knew that she had two sons who had been born in Minneapolis, ages 8 and 10, and that she feared having to leave them if she was deported.
Gonzalez knew this, and he used it. After the first assault, he pulled her aside one day.
"'If you ever tell anyone,'" she remembers him saying, "'I'll report you to immigration.'"
"I just kept thinking of my kids," Zuniga says now. "They were born here; they wanted to stay here. I kept thinking that I had to tell someone, but that if I did, they would not believe me. I felt very alone, so alone that I started to talk to myself. I felt that I couldn't do anything."
Retail custodians like Zuniga face some of the poorest working conditions in the industry. Invariably, they work for a big subcontractor like Zuniga's old employer, SMS.
"The standards in retail are horrible," says Javier Morillo, the president of the Twin Cities chapter of the Service Employees International Union, or SEIU Local 26. "When clients hire a subcontractor, it gives them the ability to distance themselves from any sort of working conditions issue."
As a result, the workers hired to fill those positions are often, like Zuniga, immigrants who have come to the country illegally.
"The exploitation," Morillo says of Zuniga's case, "is not unique."
But unlike in this case, that exploitation often goes unrecorded. Many people in the country illegally don't realize they still have legal rights, or simply avoid drawing law enforcement's attention for fear of deportation.
"Undocumented folks not reporting crimes, it happens all the time," says Mike Freeman, the Hennepin County attorney. "It's a major problem."
When Zuniga finally left her job with SMS, she sought help, ultimately teaming up with lawyers who helped her sue SMS and Gonzalez.
At the end of June, Zuniga will receive the "Courageous Plaintiff" award from the National Employment Lawyers Association. It is being bestowed on her, her nomination letter reads, for showing "that it is possible for an undocumented worker to win a lawsuit against a big corporation."
"She faced three huge obstacles," explains Steve Befort, an employment and labor law professor at the University of Minnesota. "Because of the potential danger of deportation, it's very risky to object to unsafe workplace conditions. Even if that person dares to assert rights, they might find themselves with fewer rights than other workers.
"It's very difficult," Befort continues, "for someone in her position to even dare to venture into the legal system."
When Leticia Zuniga first came to the United States, she was a 24-year-old with a tourist visa and a plane ticket to Chicago. She had grown up in the Mexican state of Hidalgo, the area just north of Mexico City.
She moved to Minneapolis right away and found work bussing tables at a hamburger joint. About five months later, she met Abraham Quevedo, the Guatemalan man who would become her husband.
In June 2005, Zuniga put in an application for a job with SMS. Marco Gonzalez, then age 37, hired her.
Gonzalez had been born and raised in El Paso, Texas, and dropped out of high school in the 10th grade to work for his dad. He got the job with SMS in 2001, and two years later, the company moved him to Minnesota to run the Ridgedale Center facility, its only contract in the state.
As facility manager, Gonzalez could hire and fire at will, and he was also responsible for all new employee training. He distributed SMS's employee manual, which included a section on sexual harassment, but he didn't have to go over it.
"He has, for this company, basically a fiefdom," says Lisa Stratton, one of the lawyers who represented Zuniga. "Utter and complete control."
Zuniga liked her new job. Gonzalez was polite and friendly, and would ask her about herself, for instance other places she had worked.
"He was charismatic," she says. "He established trust, and I respected him as my boss."
One of the employees who worked with Zuniga was Claudia Medina. She recalls that many of her co-workers were immigrants who lacked valid work papers.
"Everyone working there, including Marco Gonzalez, knew that most of the employees were undocumented," Medina declared in a court record. "Those who were undocumented were afraid to complain about anything."
In December 2006, Gonzalez fired Zuniga without warning. But then, three months later, in March 2007, she got a call from him.
Gonzalez said that the worker who had replaced Zuniga, a woman named Karla Perez, had suddenly left. He needed Zuniga to come back to work immediately — the very same day. She was surprised, but returned.
Later, after Zuniga came forward, Perez would explain that she quit so suddenly that day because Gonzalez had sexually assaulted her. She described how he said things to her like, "Are you a lesbian?" and showed her porn while she was in his office. One day, when she walked into his office, he masturbated onto her face.
But Zuniga didn't know any of that yet. She was just glad to return to a job that she knew well, and thought she was good at. This time around, though, she noticed that Gonzalez acted differently toward her.
On her first day back, "His eyes were this big from happiness" at seeing her, Zuniga remembers, stretching her eyes wide.
Almost right away, she says, he began calling her "princess" and making comments about how her clothes fit. Gonzalez later denied this to police investigators.
Two months after she returned to SMS, Gonzalez assaulted her for the first time, Zuniga alleges. The next two rapes, she says, also occurred in his basement office.
"Even if I had yelled for help," she says, "no one would have heard me."
Between assaults, Zuniga says, Gonzalez threatened retaliation if she ever complained. "He said I would see the 'real him,'" she explains.
The fourth assault occurred on the mall's east loading dock, Zuniga remembers, and caused her so much pain that two weeks later she still had difficulty walking and went to the Abbott-Northwestern emergency room.
She wanted to talk to the doctor about what was happening to her, she says, but she still hadn't spoken about the assaults to anyone, including her husband. She felt as though quitting wasn't an option. She and her family relied on her paycheck, and because of her immigration status, it was hard to find work.
She didn't know how to report Gonzalez, and even if she did, she says, she feared what he would do. She had never heard a term like "sexual harassment" for what was being done to her.
"I knew it was wrong," Zuniga says. "But I didn't know what to do."
Instead, she grew increasingly depressed. Her two sons noticed that when she wasn't working, she mostly stayed in her room. She lost her appetite. Even her co-workers noticed a change: One later said that in the last two months she worked for SMS, she seemed "empty inside."
In late September 2007, Gonzalez called an all-employee meeting. With all 18 of the housekeepers gathered, he reminded them that any romantic or sexual relationships with co-workers were strictly forbidden.
"I felt he was looking right at me the entire time," Zuniga says. "I felt like the meeting was a threat against me."
Two weeks later, on a Friday night, Zuniga finally cracked. She told her husband what had been happening.
"I felt like someone had thrown something at me, like a poison," Quevedo says. "I knew this man. I had seen her getting sad, looking like she had been crying all the time. But I had never thought it would be this."
The Monday after he heard about the attacks on his wife, Abraham Quevedo walked into Gonzalez's office at Ridgedale Center. The door was closed, Quevedo remembers, and he knocked on it.
"You abused my wife," Quevedo remembers telling Gonzalez, a man he had once considered a friend. Later, when he testified, Gonzalez remembered the accusation differently, recalling that Quevedo said, "You slept with my wife."
Quevedo wanted to punch Gonzalez, but his wife's former boss grabbed the radio, and he knew that if he moved, security would swarm the office. So after about 10 minutes, he walked out, still fuming.
Later that day, Gonzalez called SMS and told his employer about Quevedo's accusation. The company's instruction was for Gonzalez to write a statement that he had not had an affair with Zuniga.
Despite its written policy forbidding even consensual romantic relationships between managers and subordinates, SMS did not investigate Quevedo's allegation at all.
Gonzalez, though, began taking small steps to document his defense. In a memo dated November 1, 2007, he wrote that Zuniga had "had a relation" with a former co-worker. That co-worker had not worked with SMS since before 2007.
Four days later, Gonzalez wrote another memo, this one saying that a mall security guard had seen two housekeepers kissing, and their descriptions "only matched" Zuniga and another man who worked the same shift. But later, when the security guard was called in to testify, he remembered — and said he had told Gonzalez — people who looked nearly the opposite: A tall woman about 5 feet 8 inches (Zuniga is 4 feet 11 inches), and a man with shiny black hair. The man Gonzalez identified in his memo, though, had white hair.
By the end of the year, Zuniga was looking for a new job. While at an employment fair, she met an advocate, and told her what she had experienced. In January 2008, that advocate called Ridgedale Center to report Zuniga's story.
The mall contacted SMS, and later that month, Zuniga's advocate talked to the company's regional manager. He said he would tell Gonzalez to start an investigation. The advocate replied, according to court records, that Gonzalez was "part of the problem."
SMS assigned the complaint to an entry-level human resources employee, who then referred to the company's only manager in Minnesota: Gonzalez himself.
The company told Zuniga's advocate that the company would speak with Zuniga only "after" it conducted its investigation of her allegations. The day after that statement, though, the HR employee talked with Gonzalez about the investigation, and not long after, Gonzalez began sending SMS documents about Zuniga, such as her personnel file and his memos on her.
In February, with the help of Lisa Stratton and a team of student attorneys, Zuniga sent the company an official complaint. In March, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission, a federal agency that enforces employment discrimination laws.
SMS still did not talk to anyone other than Gonzalez, or send anyone else from its company to Ridgedale Center to investigate. After it received Zuniga's EEOC charge, the company asked Gonzalez to get statements from current employees about Zuniga.
Gonzalez did, conducting interviews with the employees himself, then personally translating their remarks from Spanish to English before sending the statements to SMS.
The Minnetonka Police Departmenthad begun an investigation of its own. By April, Zuniga had decided to report to them — even though doing so put her at risk for deportation.
Her lawyers told her that there might be an option for her: a special visa for victims of crimes, known as a U visa. Only 10,000 were available across the country every year, and it wasn't guaranteed — law enforcement had to certify the visa application — but it could be the solution.
"You put yourself in the hands of the police, you fill out a package of paperwork, and then you just hope and pray," says Jill Gaulding, one of Zuniga's lawyers.
Investigators took statements from Zuniga, Karla Perez, and Gonzalez himself. The first time he spoke with police, he denied the allegations flat-out, responding with a curt "no" to Zuniga's version of events, as well as questions about whether they had ever had consensual sex, or even kissed.
"Have you ever come on to her?" the investigator asked.
"No, no," Gonzalez replied.
Two weeks later, Gonzalez talked to police again. This time, he conceded that Zuniga had once kissed him.
"After that, one thing led to another," Gonzalez continued, and said Zuniga had masturbated him.
Over the next two years, Gonzalez would change his story three more times: In January 2009, when an EEOC investigator talked to him, he repeated that there was "nothing personal, day-to-day work-related issues only." But when the investigator reminded him that lying to a federal investigator was a crime, he admitted that once they had kissed, nothing more.
When he later testified for the lawsuit, he stuck to his first version: that they had never had any physical relationship at all.
Back in Minnetonka, the police took 11 carpet samples from Gonzalez's offices, where most of the alleged attacks occurred. All the samples came back from the lab negative for semen or blood.
Zuniga's lawyers later learned that back in December 2007 — several months after the last alleged assault, but nearly six months before investigators took the samples — Gonzalez had changed the carpet in his office.
Still, the investigators referred the case to the Hennepin County attorney for prosecution of criminal sexual conduct.
But there was little his office could do, explains Hennepin County Attorney Mike Freeman.
"We don't have witnesses, we don't have physical evidence, no sperm, no DNA, no blood, no anything," says Freeman, "To get to 'beyond a reasonable doubt,' which I say is 99 percent, we've got to have a lot more evidence here."
The problem, Freeman says, is that both Zuniga and Perez alerted police months after the attacks had allegedly occurred.
"Now there are a million reasons not to come forward, I understand that," Freeman says. "It's such an intimate crime that there's often a delay in reporting it. But if you delay even 24 hours, it's much harder to find the man's semen on the woman anywhere, and the perpetrator may well have returned to the scene to try to clean it up."
Because of this, sex crimes are uniquely hard to prosecute. In 2008, the same year that the county attorney declined to prosecute Zuniga's case, 159 criminal sexual conduct charges with an adult victim were referred to its office for prosecution. Of those, the office moved forward with 65 cases, or just 40 percent. For comparison, the rate for murder that year was 81 percent.
Zuniga's lawyers, Stratton and Gaulding, say that with rape cases, the amount of time it often takes victims to come forward not only makes it hard to prosecute criminally, but also plays into the public imagination.
"Studies show that there's a phenomenon where the lay public's perception is, 'Well, if that was happening to me, I would immediately report it,'" says Gaulding. "But if you're actually in that circumstance, it's not true. This is a rape myth that's out there, and it's part of what allows sexual harassment to continue."
Zuniga still wanted to take action, and her U visa application had been approved, which meant that it was possible for her to move forward in the legal system. So instead of criminal court, she took another route: On August 11, 2009, she filed a lawsuit against both Gonzalez and SMS.
On one side of the dispute was Zuniga and her two lawyers, Stratton and Gaulding, who together run the nonprofit legal advocacy organization Gender Justice out of St. Paul. On the other was SMS and Gonzalez, both represented by fleets of employment lawyers from three large corporate firms.
Over the next four years, the two sides pulled out all the stops, producing a contentious legal paper trail nearly 700 documents long.
SMS argued that, "irrespective of the heinous nature of [Zuniga's] allegations," she didn't have a case: "She failed to complain or otherwise inform anyone of the alleged assaults or any untoward behavior by Marco Gonzalez during her employment at SMS."
The argument is based on a U.S. Supreme Court ruling that incentivizes employers to take steps that minimize the risks of sexual harassment. If the employer can prove that it has policies and practices in place to "prevent and correct" harassment, and that the employee "unreasonably" failed to use those policies, then the employer's off the hook for any liability.
But Zuniga countered that taking advantage of SMS's policy was impossible. SMS might have had the bare bones of a sexual harassment policy, but the company didn't create a practice that allowed employees to actually use it. While there was a section on sexual harassment in the employee handbook, that section didn't explain how employees could or should report abuses — or include a measure to protect employees who did find a way to alert the company.
While SMS did have a flyer with the company's human resources hotline, it was up to the facility manager at each site to post it. At least one photo of the offices at Ridgedale suggests that Gonzalez never did so.
As far as the term "sexual harassment" itself, Zuniga had never heard it. There was no harassment training for employees, and even for managers like Gonzalez, it was optional. No record shows that he ever received any.
Zuniga still did manage to alert the company of her complaint, but then, she argued, SMS also botched the correction arm of the defense. It failed to conduct an unbiased investiation and to take remedial action against Gonzalez.
Gaulding and Stratton called in Louise Fitzgerald, a psychology professor at the University of Illinois and one of the pioneers in sexual harassment studies, to see how SMS's policy stacked up to industry best practices.
"The SMS preventive and supposedly remedial programs for sexual harassment are seriously inadequate or worse," Fitzgerald wrote in her 21-page expert report. She went on to chastise the company for its "failure to investigate" and for creating a situation in which "it was highly risky" for employees to complain. She also notes that Gonzalez was the only line of communication that Zuniga knew of between herself and SMS.
Steve Befort, of the U of M, agrees that even if there is a policy in place, there can be factors that make it difficult for victims to follow it.
"Sometimes, depending on who is doing the harassing," he explains, "it's difficult for the victim of harassment to go to that person or that person's buddy and complain."
As Stratton and Gaulding built Zuniga's case, they also discovered that she wasn't alone. In addition to Perez, who alleged physical sexual assault, another of Gonzalez's former employees, Claudia Medina, said that Gonzalez had repeatedly made sexual comments toward her, including following her into the bathroom and asking about her sexual preferences.
Beyond Ridgedale, the lawyers looked up all of the sexual harassment complaints that had been filed with SMS from around the country in the three-year period from 2005 to 2007. They found 114 cases — and those were just the instances that had made it to SMS's HR and been logged.
About a third of those complaints were filed against the complainant's boss. Many of the complaints were never adjudicated or even investigated by the company.
The lawyers' investigation also turned up new information, like the internet history on Gonzalez's office computer. They found that the computer had been used to browse violent porn sites like www.free-rape-pics.us. Gonzalez's computer was in his locked office, to which only he had keys, and he was the only SMS employee at Ridgedale Center whose job included computer use.
The computer had also been used to look up tutorials on how to create rape porn yourself — and at one point Gonzalez had cameras set up in his office that he used to film employees without their knowledge.
By July 2012, the sides had set a September trial date, and the law firm of Nichols Kaster, one of the top employment firms in the country, had joined Zuniga's side as trial counsel.
"I have seen abuse of undocumented immigrants in the past," writes James Kaster in an email. "But nothing compared to this case."
The lawyers were actively preparing for trial. "To our knowledge, this had never been done," says Stratton. "No one has gone to trial admitting that they're an undocumented worker, and were abused in this way."
At 6 p.m. on a Friday, most of the houses in the Elk River neighborhood where Marco Gonzalez lives have two cars in the driveway. A few kids at the end of Gonzalez's block throw a basketball around, and one of Gonzalez's neighbors mows the lawn.
The home Gonzalez shares with his wife is dark. The only car in the driveway, an old white Cadillac, has two pancake tires. Cigarette butts are piled up next to the front door, and when the bell rings, a small dog yaps, but no one answers.
In mid-2008, SMS lost its cleaning contract at Ridgedale Center. But even though Zuniga had already submitted a harassment complaint, the company continued to praise Gonzalez, and even considered promoting him to a regional manager position in another part of the country.
"This guy would rock in the regional position," one of Gonzalez's supervisors wrote in an email to other SMS bosses in August 2008.
Instead, Gonzalez took the exact same position he'd had with SMS for the Ridgedale Center's new cleaning company. He was fired two years later, but was able to find another job working for the company that cleaned the Southdale Shopping Center.
As of April 2012, according to court records, Gonzalez remains on SMS's list of employees it would rehire.
City Pages repeatedly tried to reach Gonzalez for this story, including leaving messages and letters at his home, but he did not respond.
In July 2012, rather than going to trial, Service Management Systems settled with Zuniga. As part of the settlement, SMS agreed to make major changes to its national policies.
According to the terms of the settlement, SMS now has to prominently post, in every one of its workplaces, flyers with a human resources hotline that employees can call to report harassment or other abuses. The company also agreed to end its policy of forbidding employees from complaining directly to mall management.
Above all, the company agreed to hold yearly training on sexual harassment for all of its several thousand employees nationwide.
SMS would not comment on whether it has instituted those changes yet. In a statement, the company said only that it "regularly reviews all personnel policies to ensure that they remain up to date with current trends in employment standards and legislation nationwide."
For Zuniga and her lawyers, the settlement was a victory. Even though policy changes are the standard in class action lawsuits, they're rare for a case involving just a single plaintiff.
"These changes mean something with an employer as large as SMS," says Gaulding. "That's thousands of employees who are affected. And what you hope is that by making that part of the settlement agreement, that could be powerful to other employers."
After the settlement took effect, Stratton and Gaulding caught Zuniga's reaction on camera. Wearing a jean jacket, Zuniga expressed her gratitude through her smile.
"Thank you because you believed so much in me," she told her lawyers. "In what I lived through, and in what happened to me."
Today, Zuniga says that, with the help of therapy, she's making strides back toward her old self. She has a job with another cleaning subcontractor at an office building in St. Paul, and her sons are now 14 and 16.
"Sometimes I do think about it, and I feel sad," she explains. "But sometimes I don't. I do believe that the best thing I did was talk about it.
"I'm angry that he's still working," Zuniga continues. "But I feel free."
Vivian Gepp translated for Leticia Zuniga and Abraham Quevedo.